Will
International Law Impact the Gay Marriage Cases? Conservatives Seem to Hope So.
by Peter Spiro
March 24th, 2013
It should be no surprise that there is an amicus brief in
support of striking down the Defense of Marriage Act from a global angle,
charting an international trend towards recognition of same-sex marriages. (The
brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland,
Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici
filings also evident here and here.) The brief
skillfully plays to the Court’s self-interest and the opportunity to enhance
its international prestige: “Courts in other countries have invoked this
Court’s reasoning in Lawrence, for example, to strike down laws
that impinge upon the intimate relations between gay and lesbian
couples. The Court’s ruling in this case is likely to have similar
influence.” That’s a line that might appeal to a certain swing Justice.
At the same time, there’s no hint in the brief that
international law requires the recognition of gay marriage, an argument that
would be hard to make. The brief does no overreaching, well advised in the face
of serious blowback to
the Court’s recent invocations of international law on the way to progressive
results. The caution starts with the cover page: the brief is filed on behalf
of “foreign and comparative law experts,” not international law ones.
Leave the international law argument to . . . Jeremy
Rabkin?
Rabkin and a group of mostly European academics and
former jurists have filed a brief in
support of California’s decision (through the ballot measure Proposition 8) to
reserve marriage for opposite-sex couples. The basic argument: most countries
have left the question to democratic processes, which “national and
international courts have overwhelmingly refused to trump.” That fact
establishes, the brief argues, that there are “rational, non-invidious reasons
based in secular public policy considerations” for a jurisdiction’s refusal to
recognize same-sex marriage. Variation on the question is fully compatible with
“international norms.” [My quotation marks, not theirs!]
The brief carefully qualifies the salience of
international practice. “Of course, foreign law and practice cannot and should
not determine the meaning of U.S. Constitutional guarantees.” But that practice
apparently stands as an empirical resource, a “lesson,” at least.
In the end, I suspect the Court will ignore foreign
and international practice in the Windsor and Perry decisions, consistent with
its recent posture to things foreign. But the gay marriage cases might mark an
important turning point on this particular front of the Culture Wars. With
their brief, conservatives may have conceded the threshold salience of
international practices. The door can’t be completely shut on this material,
whether the Court expressly acknowledges it or not. Once they’ve played the
international law card themselves, conservatives can hardly cry foul next time
it’s played against them. (Rabkin himself will have to lose the label “fantasy world“ when
speaking of international law.) Perhaps conservatives have come to understand
that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The
bottom line: global practice becomes more deeply entrenched in the everyday of
American constitutional law.
